Appeal from a judgment of the Justice Court of the Town of Lewisboro, Westchester County (Marc A. Seedorf, J.), rendered May 27, 2010. The judgment convicted defendant, after a non-jury trial, of harassment in the second degree.
Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: NICOLAI, P.J., LaCAVA and IANNACCI, JJ
ORDERED that the judgment of conviction is reversed, on the law, the accusatory instrument is dismissed, and the fine, if paid, is remitted.
Defendant was initially charged with harassment in the second degree in violation of Penal Law § 240.26 (3). On the morning of the trial, the People filed a superseding information which, based upon the same factual allegations, charged defendant with harassment in the second degree in violation of Penal Law § 240.26 (1). After a non-jury trial, defendant was convicted of violating Penal Law § 240.26 (1). On appeal, defendant argues that the Justice Court improperly allowed the People to file the superseding information on the morning of the trial. Defendant further argues that the evidence was legally insufficient to establish his guilt beyond a reasonable doubt.
Pursuant to CPL 100.50 (1), a superseding information may be filed with the court before the commencement of a trial of an information. "A non-jury trial commences with the first opening address, if there be any, and, if not, when the first witness is sworn . . ." (CPL 1.20 ). Since the People filed the superseding information before making their opening statement, it was filed before the commencement of the trial and, thus, properly allowed.
However, the evidence, when viewed in the light most favorable to the People (see People v Contes, 60 NY2d 620 ), was legally insufficient to establish defendant's guilt of harassment in the second degree beyond a reasonable doubt (see CPL 470.15  [b]), as his conduct was not accompanied by any further words or acts demonstrating a genuine threat of physical harm (see People v Todaro, 26 NY2d 325, 330 ; see also People v Dietze, 75 NY2d 47 ). Accordingly, the judgment of conviction is reversed and the accusatory instrument is dismissed (see CPL 470.20 ).
Nicolai, P.J., LaCava and Iannacci, JJ., concur.
Decision Date: July 28, 2011
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